Bar Journal - June 1, 2001
The Role of Attorneys on Professionalism and Judicial Commissions
By: Attorney Peter E. Hutchins
Proposals concerning the establishment of a new Judicial Conduct Committee independent of the Supreme Court, including Senate Bill 197 which passed the Senate in May and was then passed along to the House, provide for appointment of two attorneys to the J.C.C.1 Even though a majority of the new Committee would be comprised of non-lawyers, which places New Hampshire in a substantial minority of states nationally in this respect, some have advanced the position that attorneys should not be allowed to serve on a new Judicial Conduct Committee because of the claimed existence of inherent potential conflicts. This raises an issue which runs through a number of the legislative initiatives we have seen in the past year: the proper role of attorneys and the Bar Association in committees or commissions which involve either the legal profession or the judiciary.
The Bar Association, in oral and written testimony presented to both the Senate and the House during public hearings in May highlighted the fallacies in any argument suggesting that the role of lawyers in these commissions and committees be limited or eliminated. In short, the Bar Association supports the appointment of both active and inactive (retired) attorneys to any newly formed Judicial Conduct Committee, as well as to other committees and commissions pertaining to the administration of the practice of law and the justice system in this state.
The majority of the membership of virtually every review board of every trade or profession in New Hampshire is populated by members of that trade or profession. This includes doctors, dentists, accountants, chiropractors, engineers, realtors, electricians and plumbers. The average professional membership of those statutory boards reviewed is 74%.2 Of note is that all of these boards and commissions were established by the legislature. This raises the question of why certain critics of the legal system and the judiciary continually suggest that commissions or boards dealing with our profession should contain few or no lawyers and judges, and a disproportionate representation of lay members while the experience with every other profession or trade is the opposite.
With particular respect to Judicial Conduct Commissions, all 50 states have attorneys serving on their judicial discipline boards. Twenty-two (22) states have two (2) attorneys and seventeen (17) states have three (3) attorney members. In Ohio, 17 of 28 members are attorneys, 7 are judges and only 4 are public members (Ohio has, by far, the highest total membership on their J.C.C. among the other 52 states and districts).3
Forty-two (42) of fifty-two (52) states and districts have a majority of their judicial conduct committees comprised of a combination of lawyers and judges, with only a minority of lay or public members.4
To place these numbers in context, the average number of total members of the Judicial Conduct Committees in 51 of 52 states and districts (excluding Ohio) is 8.4, and the average number of attorneys on those committees is 2.4, resulting in a 29% attorney membership.5 In those same 51 states and districts, the average number of judges on the committees is 3.2, or 38% of the average membership nationwide. The combined average national membership of judges and attorneys on judicial conduct committees is 67%, or two-thirds.6
By contrast, Senate Bill 197 provides for only two attorneys (18%) and three judges (27%) on an eleven person committee. This results in a total combined membership of judges and attorneys of 45% compared with the national average of 67%. Were New Hampshire to follow the national average in regard to membership on an eleven person committee, there would be 3.2 lawyers and 4.2 judges, or a majority of at least seven (7) judges and lawyers to a maximum of four (4) public members.
Accordingly, the proposed membership of lawyers and judges in SB 197 would place New Hampshire in a substantial minority of states (19%) where public members comprise a majority of judicial conduct committee membership, falling at least one lawyer and one judge short of the national membership average.
It is also interesting to note that the prior New Hampshire Judicial Conduct Committee created by court rule and the subject of harsh criticism over the past year also had a professional membership which fell below the national averages. Of the eleven (11) members on that committee, six (6) were judges and lawyers, and five (5) were public members.7 This 55% membership of lawyers and judges, established by the New Hampshire Supreme Court which has borne the brunt of criticism in this regard over the past year, is still well below the national average of 67%.
As a result, any argument that either the prior or new Judicial Conduct Committee has a disproportionate or improper number of judge or attorney members is completely inconsistent with national figures. The makeup of the prior Judicial Conduct Committee already featured significantly higher public membership than the national average, and new proposals, including SB 197, increase this public membership further.
It has been argued that attorneys in New Hampshire could not sit on the Judicial Conduct Committee due to inevitable conflicts and alleged mischief which would occur if an attorney is asked to investigate and adjudicate charges of misconduct against a judge. The national statistics discussed above alone should serve to put this argument to rest. A further consideration of the practical realities of the practice of law in New Hampshire and the appointment process contained in SB 197 and other bills involving the formation of similar committees or commissions, however, lend additional support to the position of the Bar Association in this regard.
Any actual conflicts which may arise as the result of attorney membership on a judicial conduct committee can be easily remedied by the recusal of a judge who would perceive a conflict in sitting on a particular case involving a particular attorney. Recusals already occur for a variety of practical reasons including former business or partnership relationships among judges and active attorneys, personal relationships, etc. Were this to be a serious concern, any new judicial conduct committee could adopt rules pertaining to recusal in the event of a present of future conflict caused by a particular attorney member of the committee investigating and deciding cases involving charges of misconduct against a particular trial judge.
It is respectfully suggested, however, that the additional recusals which would result from the addition of two active attorneys from a total Bar Association membership of over 5,000 to a Judicial Conduct Committee which would oversee over one hundred state judges would, most likely, be statistically insignificant.
As a practical matter, attorneys frequently face certain potential ethical conflicts which far outnumber any to be faced as the result of a three-year term as a member of a judicial conduct committee. These potential conflicts can arise due to an attorney's ethical duties of candor to a tribunal, to represent her client's interests; to deal fairly and professionally with opposing parties, witnesses and opposing counsel; and the attorney's own self-interest in the prosecution or settlement of cases. Resolution of questions arising from the occasional inherent conflict among these and other ethical duties are accomplished by attorneys through compliance with the Code of Professional Responsibility.8 The New Hampshire Bar Association itself has a standing committee on ethics which is available to attorneys when facing some of the more difficult ethical questions requiring the input of a number of fellow attorneys who frequently consider and decide ethical questions posed by members of the Association.9 Attorneys also frequently simply ask the advice and counsel of law partners or other attorneys who they trust and know. To suggest that lawyers in New Hampshire do not and cannot resolve ethical questions and conflicts properly simply demonstrates a basic misunderstanding of the reality of the day to day practice of law in this state.
2. Value of Attorney Membership
As the vast majority of states nationwide have recognized, attorneys add a significant degree of expertise and practical experience which complement the participation and perspective of non-lawyer members of the commission. Attorneys in New Hampshire are required to have graduated from a law school accredited by the American Bar Association. Law school is a three (3) year program of concentrated study in the law resulting in the awarding of a doctorate degree (J.D. - juris doctor). Graduation from an undergraduate institution with a bachelor's degree is a pre-requisite to law school. Law school graduates must pass a two-day bar examination featuring testing on both national and New Hampshire state law. They must also pass a national ethics exam. Their application for admission to the New Hampshire Bar Association is further subject to review by the Supreme Court's Committee on Character and Fitness.10
After admission to the state bar, attorneys in New Hampshire are required to achieve twelve (12) credits annually of approved programs for continuing legal education. Two of these credits must be in the area of ethics and professionalism.11 An attorney failing to satisfy these requirements faces suspension. Live continuing legal education programs are offered by the Bar Association and numerous other approved providers. The Bar Association alone in the year 2000 sponsored and conducted over 80 separate continuing legal education programs spanning virtually every area of practice. Local and county bar associations also sponsor and hold approved educational programs at their monthly or quarterly meetings. The state Bar Association during the 2000-01 year formed a committee which traveled to local and county bar association meetings from September to June across the state presenting a program on the future of the legal profession, and how attorneys in New Hampshire could best serve their clients needs in the new millennium.12 National legal educational seminars are presented by satellite transmission at the Bar Association Center in Concord. Many New Hampshire attorneys attend legal educational seminars and programs on a national basis, with some sponsored by national legal associations such as the American Bar Association and the Association of Trial Lawyers of America.
In short, the educational, testing, and character requirements to become an attorney in New Hampshire are rigorous and strict. Once an attorney, continuing annual legal education, including in the areas of ethics and professionalism, is required to maintain a license to practice law. Attorneys, as a result, possess significant academic and practical experience necessary to the proper functioning of committees and commissions dealing with the legal profession and the judicial branch of government. To suggest that any committee or commission dealing with the profession or the judicial system would be able to do a better job without the participation of as many attorney members as possible, again, demonstrates a complete misunderstanding of the nature of the practice of law, both nationally and in New Hampshire.
3. Attorneys' Vested Interest in the Judicial System
Attorneys in New Hampshire have a vested interest in ensuring that the judicial system in this state not only works, but is perceived by the public as fair and impartial. Our clients are members of the public. To the extent that the public loses confidence in the judicial system or in our profession, it becomes exceedingly difficult for us to represent our clients in a manner or to an end with which they will be satisfied. While our clients clearly desire favorable outcomes to their cases or legal disputes, most, even if their cases is not successful, at least find it important that they were given a full and fair opportunity to present their case. Most clients can accept most outcomes. What they cannot accept, however, is any perception that they were treated unfairly, or that the system and the process contained any level of bias.
As a result, attorneys in this state have both a personal and professional interest in making the judicial system in New Hampshire the best it can be. The participation of attorneys on committees and commissions involving the profession and the judicial system ensures that they can use their experience and knowledge to that end. To eliminate attorneys from this process dilutes any commission or committee to the detriment of the very public whom critics of our profession and the judiciary claim to represent.
CONCLUSION AND RECOMMENDATION
For these reasons, the New Hampshire Bar Association stands firmly in favor of maintaining a significant level of membership of current active practicing New Hampshire attorneys on any new Judicial Conduct Committee, as well as other committees or commissions relating to the legal profession and the judicial branch of government, i.e., Professional Conduct Committee,13 Judicial Selection Commission14 and any Judicial Retention Commission.
SB 197, as amended on May 9, 2001, provided that two of the new committees eleven members would be selected by the President of the New Hampshire Bar Association. The amendment which resulted from the public hearing in the Senate, however, provided that if the members appointed by the Bar President were attorneys, these attorneys could not maintain practices before any trial court of the state. The original bill contained no such restriction.
New Hampshire examples include the following 12 boards and commissions responsible for professional discipline: Real Estate Commission, 3 of 5 members (60%) are either licensed real estate brokers or salespersons, one is a lawyer, one public member, RSA 331-A:5; Physicians & Surgeons Examining Board, 5 of 8 members are physicians or surgeons, and one paramedical professional (75%) - 2 public members, RSA 329:2; Board of Accountancy, 4 of 5 members are accountants (80%), one public member, RSA 309-B:4; Electricians Board, 3 of 5 members are either master or journeyman electricians (60%), RSA 319-C:4; Plumbers Board, 3 of 5 members are either master or journeyman plumbers (60%), RSA 329-A:3; Board of Engineers, 4 of 5 members are professional engineers (80%), one public member, RSA 310-A:3; Board of Chiropractic Examiners, 4 of 5 members are chiropractors (80%), one public member, RSA 316-A:2; Board of Dental Examiners, 6 of 9 members are dentists, 2 are dental hygienists (89%), one public member, RSA 317-A:2; Pharmacy Board, 5 of 6 members practicing pharmacists (83%), one public member, RSA 318:2; State Board of Auctioneers, 4 of 5 members are auctioneers (80%), one public member, RSA 311-B:2; Board of Barbering, Cosmetology and Esthetics, 5 of 7 members from within profession (71%), two public members, RSA 313-A:2; Board of Podiatry, 4 of 5 members are podiatrists (80%), one public member, RSA 315:1. The average membership of members of the subject professions on these boards is 74% (51 of 69 total members). All of these boards are established by statute, and therefore by the legislature.
With respect to the Professional Conduct Committee, 13 of 18 members (72%) are attorneys, at least 4 are public members. Supreme Court Rule 37(3). This is consistent with the above legislatively created boards.
In fact, the membership of the 6 person Legislative Ethics Committee is comprised of 4 legislators and only 2 public members, with those public members being appointed by the Speaker of the House and the President of the Senate. One member must also be an attorney. RSA 14-B:2.
State Court Organization 1998, U.S. Dept. of Justice, pp. 67-71, mathematical calculations performed by the author of this article.
AL, AK, AZ, AS, CA, CO, DE, DC, FL, GA, ID, IL, IN, KS, KY, LA, ME, MD, MA, MN, MS, MO, MT, NE, NV, NH, NJ, NY, NC, OH, PA, PR, SC, SD, TN, TX, UT, VT, VA, WV, WY. Source - State Court Organization 1998 - U.S. Dept. of Justice, pp.67-71. Of interest is that the same publication documents that 47 of 50 states have their state Supreme Court (or equivalent) as the final disciplining body (appeal of last resort). Appeals in the remaining three states, Delaware, Illinois and Oklahoma, are heard by specially formed "court commissions" or "courts of the judiciary." These bodies, however, are made up almost exclusively of judges from all of the different court levels in those states. Oklahoma's 9 member Court on the Judiciary includes one attorney appointed by the State Bar with 8 judges, including 2 supreme court judges. Illinois allows the governor to appoint 2 public members to a 14 person commission. The other 12 members are judges. In Delaware, all 7 members are judges, including all 5 of that state's supreme court justices.
State Court Organization 1998 - U.S. Dept. of Justice, pp. 67-71. These figures do not include membership of judges, which is a separate category in the statistical analysis.
Former Supreme Court Rule 39(2)(a).
Compliance with the Code of Professional Responsibility is ensured through the lawyer discipline procedures of the Professional Conduct Committee. See Supreme Court Rule 37, et seq.
This standing committee of the New Hampshire Bar Association meets monthly. The committee accepts written ethical questions and hypotheticals from New Hampshire lawyers. The questions are assigned to committee members for investigation and research. The members assigned the question then report their conclusions to the full committee, which votes to adopt a formal position, and then responds to the attorney. These opinions are put into written form which are then disseminated to members of the Bar Association through Bar News and the Bar's website.
See Supreme Court Rule 42 for a full description of the requirements for admission to the practice of law in the State of New Hampshire.
See Supreme Court Rule 53 for a full description of Mandatory Continuing Legal Education (MCLE) in New Hampshire.
This "Bar Association Outreach Program" as it was known presented "Powerpoint" programs at meetings of county bar associations in Carroll, Coos, Cheshire, Rockingham, Belknap and Merrimack counties. Programs are being planned for other counties and local bar associations, and the program will continue in the 2001-02 bar year.
Consistent with other professions and trades in the State of New Hampshire (average 74% membership from within the subject profession), attorney membership on the Professional Conduct Committee should always comprise a substantial majority. Attorney membership on the P.C.C. is currently 13 of 18 members (72%) which virtually matches the state average for disciplinary boards of other trades and professions established by statute. See footnote 1 for specific details and annotations. It is also consistent with recent recommendations of the American Bar Association of a 2:1 ratio of attorneys to public members on attorney discipline boards.
In the most recent version of CACR 16, the proposed constitutional amendment establishing a judicial selection and retention commission, provides for a maximum of five (5) attorneys to be appointed to the proposed eleven (11) member commission.
SB 114, which was a bill proposing the establishment of a study commission to study the nomination and appointment of judges, the proposed broad based membership did include two (2) attorneys to be appointed by the Bar Association. A later amendment to this bill, which shifted to focus of the commission to issues directly involving the legal profession, changes to the Professional Conduct Committee and the to Bar Association, did not require appointment of attorneys, but rather three (3) members of the Senate and three (3) members of the House. Attorney appointment, however, was not prohibited by the bill.
It should be noted, however, that the officers of the Bar Association as well as other attorneys with specific expertise have been invited by most of the House Subcommittee Chairmen, during this spring, to attend and actively participate in subcommittee meetings to work with legislators and provide information and expertise on a number of the judicial reform measures under consideration. The Bar Association recognizes and appreciates the willingness of these members of the House, including Representatives Henry Mock, Christopher Reid, John Pratt, Jim Craig, Robert Rowe and Janet Wall, to involve the organized bar in these important subcommittee discussions. The bar also appreciates the courtesy shown to its officers and representatives during the public hearings and workshops by many other members of the House and Senate Judiciary Committees, including their chairmen Henry Mock and Ned Gordon, and sincerely hopes that this constructive cooperation will continue during the upcoming year.